The Fla. Bar v. Hall

• Decision Date: 04 November 2010
• Docket Number: No. SC07-863.,SC07-863.
• Citation: 49 So.3d 1254
• Parties: THE FLORIDA BAR, Complainant, v. Sherry Grant HALL, Respondent.
• Court: Florida Supreme Court

49 So.3d 1254

THE FLORIDA BAR, Complainant,

v.Sherry Grant HALL, Respondent.

No. SC07-863.

Supreme Court of Florida.

Aug. 26, 2010.

Rehearing Denied Nov. 4, 2010.

John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, and Olivia Paiva Klein, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.

Lois Beryl Lepp, P.A., Pensacola, FL, for Respondent.

PER CURIAM.

We have for review a referee's report regarding alleged ethical breaches by Sherry Grant Hall. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons discussed herein, we disapprove the referee's recommended sanction of a ninety-day suspension and instead disbar Hall.

FACTS

The Florida Bar filed a disciplinary complaint alleging that Respondent Hall violated several of the Rules Regulating the Florida Bar. A referee was appointed. After holding hearings, the referee submitted a report to the Court in which she made the following findings and recommendations.¹

In late 2000, Respondent approached property owners Irving Godwin and Clara Godwin, a married couple, seeking to lease a portion of their pasture for Respondent's horses. After negotiations, Respondent went to the Godwins' home, bringing a pre-prepared lease agreement for a portion of the land. On January 21, 2001, the lease agreement was signed at the Godwins' home. At that time, the parties discussed the possibility that the Godwins might sell Respondent the pasture land and the remaining property. Respondent wrote, by hand, an addendum on the lease that was then signed by the Godwins, Respondent, and witness Joseph Grant.² The handwritten addendum stated:

Hall and Godwin agreed that Hall would obtain an appraisal, at her costs, by the end of March. The parties will thereafter negotiate an agreement for Hall to purchase the pasture, the mobile home park and the Godwin residence, with time frames for such purchase to be at the election of Godwin and to be specified, along with this specific price(s), and a contract to be executed by those parties subsequent to this lease. (Emphasis added.)

Two copies of the paperwork were prepared and signed by all parties. The Godwins kept the copy with the handwritten addendum and Respondent retained a fully signed copy without the addendum. Respondent maintained her notes regarding the addendum (which she wrote during the discussion) and the signed lease in a file at her home.³

After Respondent received a property appraisal of $83,000, she offered to purchase the land. The Godwins refused her offer. Thereafter, the Godwins obtained an appraisal that was for a higher amount, approximately $115,000 to $139,500, which Respondent refused to pay. Nevertheless, over the next several months, Respondent continued to contact the Godwins asking them to sell the property to her. In communications with the Godwins and realtors involved in attempting to sell the property, Respondent continually insisted that she had "an agreement to purchase the property as opposed to an agreement to negotiate a price for the property."

In 2003, two years after the parties signed the lease agreement, Respondent suddenly produced a letter that included a document titled "Lease Agreement and Agreement for Sale." (Emphasis added.) Respondent asserted that this document was signed by the Godwins, Respondent, and witness Joseph Grant, on January 21, 2001, (the date the lease agreement was signed at the Godwins' home). Further, Respondent had recorded this fraudulent "Lease Agreement and Agreement for Sale" in the county clerk's office on December 12, 2002. This fraudulent document had an additional typed paragraph, which was not in the Godwins' copy of the document. The additional paragraph stated that the parties shall thereafter "negotiate a time for conveyance of the property" to Respondent and added the words " Agreement for Sale " to the first page of the document. (Emphasis added.)

Three forensic document examiners reviewed the Lease and Agreement for Sale document, in which the typed language was different from the handwritten language. All three examiners concluded that the signatures of Mr. and Mrs. Godwin and witness Grant were forged. Only Respondent's signature was genuine.

The State Attorney's Office charged Respondent with two felonies-grand theft and uttering a forged instrument (the fraudulent recording of the Lease Agreement and Agreement for Sale). In August 2006, Respondent entered into a Deferred Prosecution Agreement (DPA) in which she agreed, among other things, to (1) quitclaim any interest in the Godwins' property to give them clear title to the property within forty-eight hours of signing the agreement; (2) pay the Godwins $15,000 in restitution; (3) acknowledge in writing that the existing lease between Respondent and the Godwins was null and void; (4) vacate the pasture land and relinquish any rights she might have had under the lease; (5) execute any documents necessary to eliminate any cloud on the title of the Godwins' property resulting from the lease; and (6) ensure that all sub-tenants or other persons occupying the pasture under Respondent's lease would vacate the property. In September 2006, the criminal charges were dismissed because Respondent had complied with the requirements of the DPA.

The Bar's disciplinary complaint charged Respondent with violating Rules Regulating the Florida Bar 3-4.3, Misconduct; 4-1.7(b), Conflict of Interest General Rule (2005); 4-1.8(a) and (b), Conflict of Interest Prohibiting Transactions; 4-1.9(b), Conflict of Interest Former Client; 4-1.16, Declining or Terminating Representation; 4-8.1, Bar Admission Disciplinary Matters; 4-8.4(c), Misrepresentation; and 4.8.4(d), Conduct Prejudicial to the Administration of Justice. The referee recommended that Respondent be found guilty of violating only rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).⁴ The referee made this recommendation based on the following findings.

I find that Hall changed the title of the document from Lease to Lease and Agreement for Sale and added additional language to the lease. In these days of computers it would have been impossible for Hall to take the signed agreement back to her office and make it "look good" by typing in the language. A signed and fully executed agreement could not have had a paragraph added without either handwriting it or with the use of a typewriter. The changed Lease and Agreement for Sale was prepared again by computer with a changed title and a changed addendum and three forged signatures.

....

Hall admitted that she deliberately and intentionally changed the title of the document and that she intentionally changed language from the hand-written addendum to the printed language. This made a substantial change in the content of the document and Hall did this for her own benefit. She argues that since her signature on the forged document was genuine, she must have signed it in the process of signing multiple other documents and did not realize what she had done and that some unnamed person in her office must have forged the other three signatures. This strikes the Referee as incredulous sincethere is no benefit for office staff to have forged signatures. Additionally, [Hall] stated that she did not have a regular assistant to do clerical work for her but that the lawyers did their own typing and in fact, she had prepared this agreement on her home computer and that she did not have a file in the office and that 90-95% of her legal work was performed at her home. The witness Joseph Grant as well as Mrs. Godwin testified that the hand-written language placed on the document that she retained was also added on to the second document retained by Mrs. Hall. Although there is no proof beyond a reasonable doubt that [Hall] actually forged the signatures, there is no doubt that her signature is genuine and this is a factor to be considered. A fraud was committed when the name of the document was changed and the language was changed from the original document.

With regard to aggravating factors, the referee found:

A troubling aspect of this case is that Hall attempted by means of numerous letters, phone calls and visits to the Godwins to achieve her goal of purchasing the property at a price she desired to pay.

Hall didn't notify anyone of the changed terms until February 2003 and continued to insist that she had an agreement to purchase the property not merely what could be considered as a possible option to purchase.

As to mitigating factors, the referee found that Respondent, who has been a member of The Florida Bar since 1986, has no prior disciplinary history. Also, "Hall ... is well respected in her community as an honest, hard working loyal friend involved in numerous community and church activities to the betterment of others."

Before the referee, the Bar sought the disciplinary sanction of disbarment. The referee did not discuss any case law, but considered Florida Standard for Imposing Lawyer Sanctions 7.2.⁵ After considering Standard 7.2 and the mitigating factors, the referee recommended a ninety-day suspension. The referee awarded costs to the Bar in the amount of $20,160.71.

The Florida Bar seeks review of the referee's recommended sanction of a ninety-day suspension, arguing that a three-year suspension or disbarment is appropriate. In her answer brief, Respondent asserts that the appropriate sanction is a suspension of no more than ninety days.⁶

ANALYSIS

In reviewing a referee's recommended discipline, this Court's scope ofreview is broader than that afforded to the referee's findings of fact because, ultimately, it is the Court's responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee's recommended discipline as long as it has a reasonable basis in existing case law...